Eric Hartman v. DJSCMS, Inc./Suntrup Kia

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 12-003592

Employee: Eric Hartman

Employer: DJSCMS, Inc./Suntrup Kia

Insurer: Accident Fund National Insurance Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated March 10, 2014. The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued March 10, 2014, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $16^{\text {th }}$ day of July 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: January 13, 2012
5. State location where accident occurred or occupational disease was contracted: St. Louis County
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? See Award.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was going to his employer-provided car immediately after being fired, when he slipped on ice and fell.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: Back/Body as a whole
14. Nature and extent of any permanent disability: 60 % PPD of the body as a whole
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 8,249.82

1. Value necessary medical aid not furnished by employer/insurer? $\ 273,016.01
2. Employee's average weekly wages: $\ 827.76
3. Weekly compensation rate: $\$ 551.83 / \ 425.19
4. Method wages computation: Statutory

1. Amount of compensation payable:

Unpaid medical expenses: $\ 273,016.01

$432 / 7 weeks of temporary total disability (or temporary partial disability): \ 23,886.36

240 weeks of permanent partial disability from Employer: $\ 102,045.60

1. Second Injury Fund liability: No

TOTAL: $\ 398,947.97

1. Future requirements awarded: Yes. See Award.

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: James Hoffman

The matter of Eric Hartman ("Claimant") proceeded to hearing to determine whether Claimant sustained a compensable injury when he fell on an icy parking lot immediately after being fired. Attorney James Hoffman represented Claimant. Attorney Eric Eickmeyer represented Suntrup Kia/DJSCMS Inc. ("Employer") and its insurer, Accident Fund National Insurance.

The parties stipulated that on January 13, 2012, Claimant sustained an accidental injury in St. Louis County. Venue is proper in the City of St. Louis, Employer received proper notice, and Claimant filed a timely claim. Employer paid no benefits, other than \$8,249.82 in medical benefits.

The issues are: 1) Did Claimant's accidental injury arise out of and in the course of employment; 2) What is the proper rate of compensation; 3) Is Employer liable for past medical expenses in the stipulated amount of $\ 273,016.01; 4) Is Employer liable for future medical care to cure and relieve the effects of the injury; 5) Is Claimant entitled to recover temporary total disability ("TTD") benefits; 6) What is the nature and extent of Claimant's permanent partial disability ("PPD"); and 7) Should the undersigned Administrative Law Judge exercise her discretion to sanction Employer for not producing a corporate designee, or for raising a defense?

The exhibits consisted of the following:

A. Medical \& Billing records from Mehlville Fire Protection District

B. Medical \& Billing St. Anthony's Medical Center

C. Medical \& Billing St. John's Mercy Corporate Health

D. Medical \& Billing PRO-Rehab

E. Medical \& Billing William Droege, D.C.

F. Medical \& Billing Dr. Matthew Ruyle

G. Medical \& Billing Open Sided MRI \& CT

H. Medical \& Billing R. Peter Mirkin

I. Medical \& Billing Ernst Radiology

J. Medical \& Billing Dr. Ken Smith

K. Medical \& Billing Des Peres Hospital

L. Medical \& Billing Dr. Petre I. Anguelinin, LLC

M. Medical \& Billing Therapeutic \& Diagnostic Imaging

N. Medical \& Billing Metro West Anesthesia

O. Medical \& Billing Dr. Richard Gahn

P. Deposition of Larry Esterlen

Q. Deposition of Dr. Mirkin

R. Deposition of Dr. Volarich

S. Letter dated August 21, 2012 from James Hoffmann to Dale Weppner

T. Letter dated September 10, 2012 from James Hoffmann to Dale Weppner

U. Letter dated September 12, 2012 from James Hoffmann to Dale Weppner

V. Letter dated September 24, 2012 from James Hoffmann to Dale Weppner

W. Letter dated November 2, 2012 from Dale Weppner to James Hoffmann

X. Letter dated January 24, 2013 from Dale Weppner to James Hoffmann

Y. Expenses of James Hoffmann

Z. Employee's Motion to Sanction Employer/Insurer for Failing to Produce Corporate Designee for Two Corporate Designee Depositions

1. Wage Statement

Claimant is a 48-year old man with over 20 years experience in car sales. Employer employed Claimant as a new and used car salesperson from April 2011 to January 13, 2012. Employer's facilities spanned two locations: the main showroom and business office on Lemay Ferry Road, and the used car-only satellite office down the street on South Lindbergh Road. Claimant worked primarily at the satellite office. Employer required Claimant to wear a buttondown shirt, khakis, and formal dress shoes.

Employer paid Claimant a $\ 300.00 weekly draw plus commission. He also received the use of a demonstration vehicle (the "demo"), with insurance and maintenance included, for business and personal use, which was valued at $\ 200 per week. At the end of 2011, Employer was in the process of winding up business at the satellite office and moving inventory off the lot. Accordingly, sales were down, markups were cut, and Claimant only earned an average of $\ 351.42 in the last thirteen weeks leading up to January 13, 2012. Claimant testified that $\ 645.47, which represents his average weekly earnings for the 2011 calendar year (he earned $\ 23,882.54 over 37 weeks) to Christmas, is a better and fairer representation of his overall average earnings from Employer. Considering the two additional weeks Claimant worked in 2012 and earned $\ 600, the average weekly earnings for 39 weeks of employment is $\ 627.76.

The St. Louis area was hit with an ice storm on Friday, January 13, 2012. Claimant was scheduled to work from 9 a.m. to 9 p.m., but Employer fired him sometime in the 4:00 p.m. hour. Immediately after he was fired, Claimant slipped and fell in the parking lot. There is conflicting evidence as to the details of the firing. Claimant testified his manager Jeremy called a meeting at the satellite office with one other person present, at which time Jeremy told Claimant they had to "part ways at the end of the day" and gave him "five hours to get everything together." Claimant felt rushed to try to get credit for the deals he had in process, and drove his demo to the main

office to talk to the finance department. Upon arrival at the main office, Claimant discovered the finance office door closed, so he said he decided to return to his car to get his paperwork. It was while he was retrieving necessary paperwork that Claimant fell.

Michael Schrieber, Employer's GM, presented a slightly different version of facts leading up to the accident. He testified Claimant was in his Lemay Ferry office when the sales manager, Chris Dixon, terminated Claimant's employment. Claimant walked out of the sales office, and within seconds had fallen in the parking lot. Although he did not witness the event, Mr. Schrieber testified Claimant was leaving the building to have a porter take him home in the demo when he fell. In his many years in the car sales industry, Mr. Schrieber had never known of a salesman who finished deals after termination. He also thought it was unlikely Claimant had deals to finish up since he was not selling cars due to the winding down of business at the satellite office. Lawrence Esterlen, a salesperson who worked with Claimant at the satellite office, testified Employer fired people two different ways: 1) take the demo keys and call a cab; or 2) let the salesperson finish his business. Mr. Esterlen, who did not participate in Claimant's firing but claimed to know it was coming, said the second option was used in Claimant's case.

Regardless of the disputed facts leading up to the accident, there is no dispute that Claimant exited the main office and began walking around a box truck toward the demo, when he slipped on the ice, his feet went out from under him, his buttocks hit the pavement, and he felt something in his back pop. Claimant had not closed out any deals, emptied his desk, or cleaned out/turned over the demo. Although he is not sure whether he saw the fall or just the aftermath, Tim Nothum, a salesmen in the main office, was immediately at Claimant's side. He counseled Claimant to stay put, rolled up his jacket as a pillow, and arranged for an ambulance, which was dispatched at 5:18 p.m. and which transported Claimant to St. Anthony's Medical Center.

The emergency room records indicate Claimant slipped on ice, and fell striking his pelvis, head and elbow. Claimant stated that he twisted his back in the fall and his primary complaint was right lower back pain. Claimant complained of sharp lower back pain, following a fall that "occurred at work slipping on icy pavement." The nurse's notes indicate that in the fall he "twisted lower back and heard a pop." X-rays of Claimant's lumbar, thoracic, and cervical spine and pelvis were negative for fractures. Claimant was discharged with a prescription for Vicodin for his back pain and instructions to foll